Summary: Ms X complained the Council failed to arrange suitable education for her daughter, Miss Y, for the 2024/25 school year. The Council failed to secure the education from Miss Y’s Education Health and Care Plan after the college she was supposed to attend did not admit her. It also failed to review Miss Y’s plan when it should have done and communicated with Ms X poorly. This caused Miss Y to miss around a year of education and also caused Miss Y and Ms X avoidable distress. The Council agreed to apologise, and pay them a financial remedy. It also agreed to issue reminders to its staff.

The complaint

1. Ms X complains, on behalf of her daughter, Miss Y, about the support the Council provided for Miss Y’s special educational needs. Ms X says the Council:
• failed to ensure the school it named in Miss Y’s Education Health and Care Plan admitted her in September 2024;
• failed to make suitable alternative arrangements when it knew Miss Y was not attending her named school;
• shared incorrect information with private tutors; and
• communicated with Ms X poorly.
2. As a result, Ms X says both Miss Y’s and her own emotional and mental wellbeing was significantly affected and Miss Y went without the education she should have received. They want the Council to properly recognise the impact this has had on them both, listen to them when planning Miss Y’s education and communicate with them better.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council, as well as relevant law, policy and guidance.
9. Ms X, Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Education health and care plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Children and Families Act 2014, section 42). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. Most schools and colleges named in a child or young person’s EHC Plan must admit the child or young person (Children and Families Act 2014, section 43)
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

Alternative education provision

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. However, this duty only applies to children of compulsory school age. Most children cease to be of compulsory school age before their 17th birthday.

What happened

17. Ms X’s daughter, Miss Y, has special educational needs and an Education Health and Care (EHC) Plan from the Council.
18. The Council amended Miss Y’s EHC Plan in July 2024, and named College A as the educational placement she would start at from September that year.
19. Shortly before Miss Y was due to start at the College, it told the Council that it did not have space for Miss Y and she would not be able to start in September. It suggested to the Council that Miss Y could start her placement in September 2025 instead.
20. There is some evidence the Council challenged the College and explained that, since the Council had named the College in Miss Y’s EHC Plan, the College had to admit her from September 2024. However, despite the Council’s efforts to engage with the College, it did not arrange to admit Miss Y or provide her with any alternative education.
21. The Council referred Miss Y for one-to-one tuition in October 2024. As part of that referral it shared information about Miss Y with potential tutors. However, the information the Council shared with tutors contained some incorrect details about Miss Y’s medical history.
22. Ms X later found out the tutor assigned to work with Miss Y was personally known to them. Because of this it was decided it was not appropriate for the tutor to work with Miss Y. Ms X also had a difficult conversation with the tutor about the incorrect information the Council had shared about Miss Y.
23. During the next several months the Council had some discussions with Ms X and the College about how Miss Y could be supported to start at the College from September 2025. However, the Council did not make any other arrangements for Miss Y’s education until it referred her for further tuition in March 2025.
24. At the time of this decision, the plan is still for Miss Y to attend the College from September 2025 and the College is doing some work with Miss Y to try to prepare her for that start.

My findings

Securing special educational provision for Miss Y

25. Since it was named in Miss Y’s EHC plan, the College had a duty to admit her from September 2024, which it failed to do.
26. However, the law says the duty to secure the education and support set out in an EHC Plan is the responsibility of the Council. Even if the Council delegates that responsibility to someone, such as the College, the Council is still responsible for this.
27. The evidence shows the Council tried to get the College to admit Miss Y, but when this did not happen the Council still had a duty to provide what was set out in her EHC Plan. Even if the Council was not able to do this because of circumstances outside of its control, it is still responsible for any education Miss Y missed as a result.
28. I am satisfied there was a mixture of both maladministration and service failure which led to Miss Y missing out on a significant period of her education, including:
• the College failing to admit Miss Y as it should have done;
• delays in finding a suitable tutor after the Council started the search in October 2024;
• the tutor being unsuitable because they were personally known to Ms X and Miss Y;
• the Council’s failure to take other steps to consider other ways of arranging the support after the first attempt at arranging tuition for Miss X until March 2025 (this was maladministration); and
• the failure to ensure the second referral for tuition was followed up on (this was also maladministration).
29. The failure to arrange and provide the education and other support set out in Miss Y’s EHC Plan was fault. I am satisfied this led to Miss Y missing out on education for most of the 2024/25 school year.

2024 annual review

30. The Council also failed to carry out a review of Miss Y’s EHC Plan in 2024.
31. The July 2024 EHC plan it issued was based on a review from late 2023. The Council should have carried out a further review within 12 months of that review (not 12 months of when it issued the amended EHC Plan). This would have been sometime in late 2024.
32. However, the Council did not hold an annual review until June 2025. The failure to carry out an annual review within 12 months of the previous review was fault. This denied Ms X and Miss Y a further opportunity to raise their concerns about Miss Y’s ongoing lack of education.

Impact on Miss Y’s education

33. I am satisfied the fault I have found above led to Miss Y being without a suitable education for most of the 2024/25 school year.
34. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss.
35. In its response to my enquiries, the Council offered to pay Miss Y £2,000 for what it considered to one term of missed education. Taking into account Miss Y’s special educational needs, the support set out in her EHC Plan and that September 2024 was the start of an important stage of Miss Y’s education, I am satisfied that £2,000 a term is an appropriate remedy.
36. However, the Council should pay that amount for each of the three terms for the 2024/25 school year.

Sharing incorrect information with tutors

37. The Council accepts it recorded and shared incorrect information about Miss Y. That was fault.
38. While the Council could not have known that someone Ms X and Miss Y knew would see that information, that is what happened. Given the nature of the incorrect information, I am satisfied someone they knew being told that information was embarrassing and distressing to both Miss Y and Ms X. It also led to a difficult conversation for Ms X explaining the error.

Communication with Ms X

39. The evidence shows the Council kept in, mostly, regular contact with Ms X during the period I have investigated. However, there were some times when Ms X had to chase responses from the Council.
40. There was also a lack of clarity from the Council about what it was doing, what the plans were for Miss Y’s education and what should happen next.
41. Overall, I consider there was poor communication from the Council which led to further frustration and confusion for Ms X and Miss Y.

Further impact on Miss Y and Ms X

42. On top of the missed education for Miss Y, I also consider the other fault I have found caused Miss Y and Ms X additional, avoidable frustration, worry, and distress over a significant period of time.
43. In particular, the lack of a clear plan for getting Miss Y back into education and the gap in her education has impacted Miss Y’s confidence and will likely make her start in September 2025 more difficult.
44. In its response to our enquiries, the Council offered to pay Ms X £300 to recognise any further distress. Given the period of time this distress was over, I do not consider that to be a suitable remedy. The Council should, instead, pay Miss Y and Ms X £400 each to recognise the extra distress it caused.

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Action

45. Within one month of my final decision the Council will:
• apologise to Miss Y and Ms X for the injustice I have set out above;
• pay Miss Y £6,000 to recognise the education she missed during the 2024/25 school year (that is intended for her future educational benefit); and
• pay Miss Y and Ms X £400 each to recognise the further distress caused by the fault I found.
46. Within three months of my final decision the Council will:
• remind its special educational needs staff that the Council is responsible for securing all the provision in a child or young person’s Education Health and Care Plan and should intervene if there is evidence to show support is not being provided; and
• remind relevant staff of the importance of recording correct information about people and that they should take care to ensure the information they record is accurate.
47. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman